The opinion of the court was delivered by: Paul S. Diamond, J.
Petitioner Jules Jette has filed pro se Objections to the Magistrate Judge's Report and Recommendation regarding his Petition for habeas relief. 28 U.S.C. § 2254. I will sustain Petitioner's Objections in part, accept the Magistrate Judge's findings as modified by this Order, and stay these proceedings pending the disposition of Petitioner's state court post-conviction appeal.
I must review de novo those portions of the Magistrate Judge's Report and Recommendation to which timely, specific objections have been filed. 28 U.S.C. § 636(b)(1)(C). I may "accept, reject, or modify, in whole or in part" the Magistrate Judge's findings or recommendations. Id.
On October 1, 2001, Petitioner was convicted in the Philadelphia Common Pleas Court of involuntary deviate sexual intercourse, endangering the welfare of a child, and corrupting the morals of a minor. (Doc. No 13 Ex. B.) His conviction was affirmed on direct appeal. (Id.)
Pennsylvania's Supreme Court denied allocatur on September 3, 2003. Commonwealth v. Jette, 833 A.2d 141 (Pa. 2003) (Table). Petitioner then filed two pro se petitions for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act. 42 Pa. Cons. Stat. § 9541 et seq. Petitioner's court-appointed attorney initially filed a "no merit" letter. Ultimately, however, counsel filed an amended PCRA petition, which was dismissed on November 1, 2011. (Doc. No. 13 Ex. D.)
On December 28, 2011, Petitioner filed, pro se,a second PCRA petition, which the PCRA court dismissed as untimely. (Doc. No. 13 Ex. E.) Petitioner appealed to Pennsylvania's Superior Court. On April 27, 2012, while that appeal was still pending, Petitioner filed the instant Petition, bringing sixteen separate claims for relief. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) ("[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court."). Respondents filed their response on September 11, 2012. (Doc. No. 13.) Although the Magistrate assumes that all sixteen of Petitioner's claims are unexhausted, Respondents concede that three of Petitioner's claims were properly raised in his first, timely PCRA petition. (Doc. No. 13 at 16.)
On March 15, 2013, after the Magistrate filed her Report and Recommendation, the Pennsylvania Superior Court affirmed the lower court's dismissal of Petitioner's second PCRA petition as untimely. (Doc. No. 20 Ex. A.) Petitioner has filed a Petition for Reargument en banc, which is still pending. (Id.)
The Magistrate recommends that I dismiss the Petition without prejudice in light of Petitioner's ongoing post-conviction appeal in state court. A federal court may not grant a writ of habeas corpus under § 2254 unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim for relief, "[a] state prisoner must 'fairly present' all federal claims to the highest state court." Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
Petitioner's request for a rehearing en banc is still pending, and should that request be denied, he may appeal to the Pennsylvania Supreme Court. Petitioner acknowledges his pending appeal but objects to dismissal. Because his Petition contains both exhausted and unexhausted claims-a "mixed" petition-he asks me to stay his Petition, rather than dismiss. Petitioner states that unless the state courts determine that his second PCRA petition was properly filed, his federal "habeas clock continues to tick" on his exhausted claims. He argues that a dismissal might jeopardize the timeliness of his request for habeas relief. Petitioner is correct. The Antiterrorism and Effective Death Penalty Act of 1996 imposes a one-year statute of limitations for filing petitions for habeas corpus. 28 U.S.C. § 2244(d)(1). That period begins to run from the date on which "judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. This period may be tolled during the pendency of a state collateral proceeding if that collateral petition was properly filed under state law. § 2244(d)(2). An improperly filed petition does not toll the statute of limitations.
Petitioner's second PCRA petition was dismissed by the PCRA court as untimely, and the Superior Court affirmed. Should Petitioner's appeal prove unsuccessful, his second PCRA petition will not be considered "properly filed" and thus will not toll AEDPA's one year limitation. Eckles v. Erickson, No. 06-1870, 2007 WL 106520, at *4 (E.D. Pa. Jan. 9, 2007). Furthermore, dismissal without prejudice of a habeas petition does not toll AEDPA's statute of limitations for a later habeas petition. Duncan v. Walker, 533 U.S. 167, 172 (2001). "If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it [for failure to exhaust] after the limitations period has expired, this will likely mean the termination of any federal review." Rhines v. Weber, 544 U.S. 269, 275 (2005). In such a case, a stay is appropriate. See id. at 277-78; Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (approving stay and abeyance while petitioner pursued second ...